Bombay High Court
Abhijit S Shingote vs The State Of Maharashtra And Ors on 7 May, 2024
Author: A.S. Gadkari
Bench: A.S. Gadkari
2024:BHC-AS:21477-DB
P.H. Jayani 20 WP341.2024 Final.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 341 OF 2024
Mr. Abhijit S. Shingote
Age : 36 years, Occ : Service,
R/at : 10315 Alexander,
Martin Ave, Charlotte NC 28277 .... Petitioner
v/s.
1) The State of Maharashtra
Through Public Prosecutor
2) Sr. PI Nerul Police Station
Jagatguru Aadi Shankracharya Marg,
Sector 23, Darave Village,
Sector 28, Nerul, Navi Mumbai
3) Mrs. Shrikala Tikekar
Age : 33 years, Occupation : Service,
Currently R/at : Mukkam Post
Tikekar wadi, Post Otur, Junnar,
Pune - 412409.
And
2071/3B Shrirang, Anantjyoti Society,
Jayantrao Tilak Nagar, Sahkarnagar,
Pune - 411 009 .... Respondents
Mr. Siddhesh Bhole a/w. Mr. Ashwin Pimple, Mr. Abhishek Bandre,
Ms. Nehal Desale i/b. Mr. Aditya Andhorikar for the Petitioner.
Mr. S.V. Gavand, APP for the State.
Mr. Harshwardhan Salgaokar a/w. Mr. Himanshu Patil i/b.
Mr. Sangharsh Waghmare for Respondent No.3.
CORAM : A.S. GADKARI AND
SHYAM C. CHANDAK, JJ.
RESERVED ON : 02nd APRIL, 2024.
PRONOUNCED ON : 07th MAY, 2024.
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P.H. Jayani 20 WP341.2024 Final.doc
JUDGMENT :
[PER : SHYAM C. CHANDAK, J.] :-
1) Rule. Rule made returnable forthwith and with the consent of
learned Advocates for the respective parties, heard finally.
2) This is a Writ Petition under Article 226 of the Constitution of
India. Since the Petition is concerning a girl child aged about 7 years as of
date; to respect her anonymity, we deem it appropriate to refer her as
Miss 'R' for the purpose of our decision.
2.1) The main relief that Petitioner prayed for is as under :-
" This Hon'ble Court be pleased to issue an appropriate writ, order
or direction in the nature Habeas Corpus to the Respondents and
more particularly Respondent No.2 to produce the minor
daughter Miss 'R' before this Hon'ble Court and deliver her
custody to the Petitioner Father so as to repatriated her to the
U.S.A in compliance of the order passed by the U.S court dated
14/12/2023 and 12/01/2024."
2.2) The other prayers relate to an interim relief and other
consequential reliefs.
3) In the case of Smriti Madan Kansagra vs. Perry Kansagra,
2017 SCC OnLine Del 7007, the High Court of Delhi has observed that, " The
issue of custody, including interim custody and visitation rights of the
parents to a child becomes a source of continuous litigation when the
litigating couple adopts hard postures. Often the innocent children are used
as tools of vengeance by vindictive litigants who inflict severe emotional
P.H. Jayani 20 WP341.2024 Final.doc
and psychological abuse on the child thereby seriously affecting the child in
his/her later part of life. We have been noticing that in family disputes,
litigants often made false and vindictive allegations against each other,
wasting and consuming enormous Court's time. Depriving a child the love
and affection of both parents is not in the interest of the child. The custodial
parent who tries to alienate the child from the other parent does not realize
the serious consequences caused in the later part of the child's life. It is the
fundamental right of children to get love and affection from both parents. If
efforts made by a Court to make the parties mutually agree upon a
visitation schedule and interim custody period fail, the Court has to step in
and pass suitable orders in the best interest of the child. "
3.1) With this as preface, we proceed to note the averments of
Petitioner ('the husband', for short) and contentions of Respondent No.3
('the wife', for short), as the contest between two is not an exception to that.
4) The husband's case is that, since 2007, he has been working
and residing in the United States of America (' the USA', for short). He is
having an Indian passport. The husband and the wife are Indian Citizens by
birth. Their marriage was solemnized on 16 th January, 2015 at Pune, India.
On 09th February 2015, the couple shifted to the USA. On 24 th June 2016,
the couple was blessed with Miss 'R'. She is a citizen of the USA and holds a
passport thereof.
4.1) It is alleged that, meanwhile the husband was subjected to
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physical, mental, social, emotional and financial harassment by the wife.
The husband and the wife, therefore, fallen apart on 05 th September 2023.
Thereafter, the residential address of the wife and Miss 'R' was 5924, Cactus
Valley Road, Charlotte, North Carolina 28277.
4.2) On 05th September 2023 itself, the husband filed a Motion
before the District Court of Mecklenburg County, in the States of North
Carolina, the USA ('The Mecklenburg Court', for short), seeking for Miss 'R's
custody, child support and equitable distribution. The wife appeared in the
said case and filed her verified Answers-cum-Counter-claims for post
separation support, alimony, child custody, equitable distribution, Motion for
Temporary Parenting Arrangement, child support and Attorney fees. It was
followed by the husband's verified defence, reply and responsive pleadings.
During the hearing for 'Temporary Parenting Arrangement', it was confirmed
that, till final hearing, the parties would continue to exercise joint physical
custody on a week on-week off basis. One Lynna Moen was appointed as a
Parenting Co-ordinator. Then, between 05 th September 2023 to 06th
December 2023, the husband fully participated in the daily activities of Miss
'R' and took her on vacation on certain occasions.
4.3) It is averred that, on 06th December 2023, suddenly the wife
withdrew Miss 'R' from her School. On 07th December 2023, she flew to
India alongwith Miss 'R' but without intimation to and consent of the
husband. Thus, the wife flouted the temporary arrangement of Miss 'R's
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custody and the Orders of the competent Court. Thereafter, the wife was
non-communicating. In this background, on 14th December 2023, the
Mecklenburg Court granted a Motion by the husband for an Ex-parte
Emergency Custody i.e., sole legal and physical care, custody and control of
child 'R'. However, the wife did not appear in the case on 04th January 2024.
4.4) It is stated that, after coming to India, the wife filed a report
bearing F.I.R.No.567/2023 with Nerul Police Station, Navi Mumbai against
the husband and his relatives alleging offences punishable under Sections
323, 406, 498-A, 504, 506 read with Section 34 of the Indian Penal Code,
1860 ('I.P.C.', for short). The husband also filed a report dated 09 th January
2024 with Nerul Police Station, Navi Mumbai against the wife alleging
offences punishable under Sections 361 and 363 of I.P.C.
4.5) By its Order dated 19th January 2024, the Mecklenburg Court
permanently granted the sole custody of Miss 'R' to the husband. The said
Court also issued a suo moto Order to the wife to show cause as to why she
be not held in willful civil/criminal contempt of the Court for violating the
terms of Temporary Parenting Arrangement dated 06 th December 2023 as
well as fleeing the jurisdiction of said Court etc. In the backdrop, custody of
Miss 'R' with the wife is illegal.
4.6) However, the wife filed a Custody Petition D. No.03/2024,
under Section 7 of The Guardians and Wards Act, 1890 with the Family
Court, at Pune claiming permanent custody of Miss 'R'. Hence, the Petition.
P.H. Jayani 20 WP341.2024 Final.doc
5) The wife filed her Affidavit-in-Reply and resisted the Petition.
The wife contended that, the husband and his family members subjected her
to cruelty, therefore, on 12th December 2023, she filed the F.I.R. alleging
cruelty. On 05th January 2024, she filed the Custody Petition in which the
husband recorded his appearance and opted for mediation. On 05 th February
2024, she filed a petition for domestic violence against the husband at
District Court, Pune.
5.1) The wife contended that, the husband, at the advice of his
brother and her sister-in-law, had planned to deprive her of Miss 'R's lawful
custody. Accordingly, on 05th September 2023, the husband left their
matrimonial home, took Miss 'R' from her school without the wife's consent
and filed the Petition before the Mecklenburg Court, seeking separate
custody of Miss 'R'. On the same day, the husband sent an e-mail through his
attorney stating that, Miss 'R's residence has been changed to a new address
and the wife is not supposed to contact the husband or Miss 'R', without his
lawyer being involved. The husband withheld the wife's immigration
documents and Canadian PR in exchange of her consent to Indian divorce in
the USA as her visa was dependent on the husband's visa-H4 (spouse visa).
The husband was trying to make the wife's presence illegal in the USA by
withholding her immigration documents and attempting to deport her
without Miss 'R'.
5.2) It is contended that, on 06th September 2023, the husband,
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through his attorney, blackmailed the wife saying that, the only way for her
to see Miss 'R' again is if she agrees to equal visits of Miss 'R' over the week.
The husband restricted all her access to Miss 'R' until she agrees to equal
custody. Trapped in this critical situation, she agreed for that arrangement
with the husband through their lawyers. The USA Court was not involved in
determination of the custody schedule till the wife traveled back to India.
5.3) It is contended that, the husband was packing stale-food and
uncooked sausages in Miss R's lunch box for school and sending her without
proper clothing. Meantime, Miss 'R' suffered anal fissure, however, the
husband diagnosed and tried to treat it on his own. He also did not care for
Miss R's other medical issues. This has badly impacted on her health.
5.4) It is contended that, the husband was not allowing Miss 'R' to
stay with the wife. He used to lock Miss 'R' until she agrees that, she does
not want to see her mother. Therefore, on multiple occasion Miss 'R' stated
that, 'I hate myself; I wish I was dead '. Once, when the wife was getting
Miss 'R' ready to send to the husband's house, Miss 'R' asked as, ' What will
happen, if she is dead?, How will her mom know about it?' Thus, the
separation between the parents and the ongoing problems caused stress and
similar issues to Miss 'R'. The husband, however, declined the wife's request
to take Miss 'R' to a Child Therapist.
5.5) It is denied that, post separation Miss 'R' was in sole custody of
the husband. In fact, the wife was also looking after Miss 'R' as the parties
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were residing in the same house. It is contended that, due to separation
between the husband and wife, Miss 'R' had tough time. She exhibited
indiscipline in the school for which she was punished. Therefore, the wife
met Miss 'R's class teacher and explained that Miss 'R's said behavior is the
result of separation between the parents and new living arrangements. The
class teacher, however, did not convey that fact to the School Counsellor.
Yet, the husband obtained a letter from the School to show that, Miss 'R'
never needed the counselling.
5.6) It is contended that, the lifestyle of the husband is unsuitable
for Miss 'R'. He has been leading an immoral life. He has an anxiety issues.
His smoking habit has taken heavy toll on Miss 'R's health. In contrast, the
wife was and has been taking every good care of Miss 'R'. There is good
physical and emotional bond between the two.
5.7) It is contended that, after separation between the parents,
arrangement of Miss 'R's custody was pursuant to their mutual
understanding and it was until the Court decides otherwise. On 06 th
December 2023, the Mecklenburg Court simply adjourned the matter to the
next date without passing any order binding on the parties. Meantime, Miss
'R' was in need of counselling, proper care and attention as she was going
through tough phase of life. However, the husband did not show any
concern for Miss 'R's physical and mental well-being. The said Court's
hearing were nothing but an emotional and mental suffering for Miss 'R'. In
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this background, both Miss 'R' and the wife needed a proper family support.
The wife's stay in the USA was subject to the 'Spouse Visa'. Therefore, the
wife came to India along with Miss 'R'.
5.8) It is contended that, when Miss 'R' was brought to India on 07 th
December 2023, there was no Court order in force. According to the local
enactment of the State of North Carolina, both the parents have equal rights
over Miss 'R' in absence of a specific Court Order. The Mecklenburg Court's
ex-parte Order dated 14th December 2023, is not enforceable in India.
Moreover, India is not signatory to Hague Convention on the Civil Aspects of
International Child Abduction (Hague Abduction Convention), 1980. The
Mecklenburg Court has no jurisdiction to decide the issues between the
parents. It is contended that, the appropriate Court for the parties to
approach for the custody and separation is Indian Family Court as both the
parties are Indian Citizens and they are exercising their right to Miss 'R's
custody as Indian Citizens, even though she is the USA national by birth.
Therefore, the instant Petition is not maintainable in law as Miss 'R' is in
lawful custody of the wife.
5.9) It is contended that, now, Miss 'R' is going to Universal Wisdom
School, Pune, from 08th January, 2024. Miss 'R' is settled in the said school
environment and enjoying the care and attention from the wife and her
family members. Miss 'R' has been taking child therapy from Ms. Nisrin
Poonawala, Pune. It is contended that, the husband failed to properly look
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after Miss 'R', take care of her physical and mental well-being and he is not
able to pay proper attention to Miss 'R' and her needs due to his job. Thus,
Miss 'R' was not safe in the hands of the husband. It is contended that, the
wife has been employed since last two years, therefore, she is able to meet
the financial needs of Miss 'R'. In the backdrop, the best interest of Miss 'R'
can be achieved if she remains in the wife's custody only. And this is possible
as Miss 'R' holds an 'Overseas Citizenship of India' Card (OCI) and she can
have Indian citizenship after she becomes major. Hence the Petition be
dismissed.
Oral Submissions :-
6) Mr. Siddhesh Bhole, learned counsel for the Petitioner
submitted that, the cruelty to the husband by the wife caused a separation
between them. Since birth, Miss 'R' was ordinarily residing at North
Carolina, the USA. She, therefore, was used to the living conditions there.
She was studying in a school. She had developed good friendship with
children there. During this time, Miss 'R' was comfortable and safe in the
company of the husband as he showered upon her the best love and
affection. The certificate issued by Miss 'R's School Authority shows that, she
has no health issues and on the contrary, she is a normal and a bright
student. Even after separation between the husband and the wife, the
former took every best possible care of Miss 'R'.
6.1) However, as the differences between the husband and the wife
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could not be resolved, the husband was compelled to file a Motion before
the Mecklenburg Court, seeking Miss 'R's custody. The claim made in that
Motion that, said Court has jurisdiction to adjudicate all the issues between
the parties, has been conceded by the wife in her Answer-cum-Counter
claims. However, when the said case was scheduled for hearing on 06 th
December 2023, suddenly, the wife moved to India along with Miss 'R', but
without bothering about the ill-effects of such uprooting on Miss 'R'.
6.2) The learned counsel submitted that, the ground of cruelty
raised by the wife is an afterthought. The wife's allegation that, the husband
was intending to withhold her documents of immigration to make her stay
in the USA illegal, is not only baseless but also false. Said ground has been
taken just to entangle the husband in the litigation in India and deny him
the child's custody. Lastly, learned Advocate submitted that, the husband is
fit in all respects i.e., physically, mentally, financially and socially to look
after Miss 'R' and raise her as a respectable member of the society.
Absolutely, there is no harm to Miss 'R' if she resides with the husband in the
USA. If Miss 'R' resides and grows in the USA, she will have good prospects.
As such, repatriation of Miss 'R' to the USA would serve her best interest,
which should be a primary consideration in such litigation. To buttress the
submissions, the learned Advocate placed his reliance on following
decisions :-
i) Lahari Sakhamuri vs. Sobhan Kodali, 2019 (7) SCC 311; ii) Nienke
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Leida Hulshof vs. State of Maharashtra and Othrs., 2024 SCC Online Bom
447 ; iii) Yashita Sahu vs. State of Rajasthan and others, (2020) 3 SCC 67
and; iv) Mr. Abhay s/o. Sanjeev Mogal vs. Mrs. Nehal Joshi, 2021 SCC
Online Bom 11381.
7) Mr. Harshwardhan Salgaokar, learned counsel for Respondent
No.3-wife submitted that, there is history of cruelty to the wife at the hands
of the husband and his relatives. As described in the reply, the husband's
behaviour with Miss 'R' was not proper. He was not taking Miss 'R's proper
care and looking after her daily and medical needs. The conduct of the
husband in suddenly moving to his brother's place along with Miss 'R' on
05th September 2023, proved injurious to Miss 'R'. All this caused health
issues to Miss 'R'. However, the husband did not take the child to a Child
Therapist to do the needful. He was not allowing Miss 'R' to stay with the
wife. The husband withheld the wife's immigration documents and
Canadian PR in exchange of her consent to Indian divorce in the USA as her
visa was dependent on the husband's visa-H4 (spouse visa). The husband
was trying to make the wife's presence illegal in the USA by withholding her
immigration documents and attempting to deport her without Miss 'R'. This
all created a compelling situation which ultimately led the wife to return to
India along with Miss 'R'.
7.1) Learned counsel submitted that, financially, the wife is stable.
She is capable to provide every financial support to Miss 'R'. Presently Miss
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'R' is just aged 07 years, therefore, she must be in the company of the wife.
After coming to India, immediately the wife admitted Miss 'R' in a best
school in Pune. She got Miss 'R' examined from an Expert Psychologist. This
helped resolving Miss 'R's health issues. There is paternal family support to
the wife in India. The parties are not permanent residents of the USA. In the
backdrop, the Court cases including the Custody Petition filed by the wife
against the husband, can be heard and decided in India, without raising a
question of jurisdiction, legitimately. Now, there is no point in uprooting
Miss 'R' from India and repatriating to the USA. Therefore, the Petition is
liable to be dismissed. To support his submissions, learned Advocate for
Respondent No.3 relied upon the decision in Nithya Anand Raghavan vs.
State (NCT of Delhi) and another, (2017) 8 SCC 454.
ANALYSIS :
8) In so far as the objection as to maintainability of this Petition is
concerned, we are not affected with that, because following the precedent in
the case of Yashita Sahu (supra), the Hon'ble Supreme Court clearly laid
down that :
" 10. It is too late in the day to urge that a writ of habeas corpus is
not maintainable if the child is in the custody of another parent. The
law in this regard has developed a lot over a period of time but now
it is a settled position that the court can invoke its extraordinary writ
jurisdiction for the best interest of the child. ....."
9) However, as held by the Hon'ble Supreme Court in the case of
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Rajeswari Chandrasekar Ganesh vs. The State of Tamil Nadu & Ors, 2022
SCC OnLine SC 885, in paragraph 86, [reiterated in Elizabeth Dinshaw v/s.
Arvand M. Dinshaw, (1987) 1 SCC 42] ,"whenever a question arises before a
court pertaining to the custody of the minor child, the matter is to be
decided not on consideration of the legal rights of the parties but on the
sole and predominant criterion of what would best serve the interest and
welfare of the child".
9.1) In this regard, the Apex Court referred to the decision in
McGrath (Infants), [1893] 1 Ch. 143 C.A., wherein it was observed that,
".....The dominant matter for the consideration of the Court is the welfare
of the child. But the welfare of a child is not to be measured by money only,
nor by physical comfort only. The word welfare must be taken in its widest
sense. The moral and religious welfare of the child must be considered as
well as its physical well-being. Nor can the ties of affection be disregarded."
9.2) In view thereof, in paragraph 91, the Hon'ble Supreme Court
held as under :-
" 91. Thus, it is well established that in issuing the writ of Habeas
Corpus in the case of minors, the jurisdiction which the Court
exercises is an inherent jurisdiction as distinct from a statutory
jurisdiction conferred by any particular provision in any special
statute. In other words, the employment of the writ of Habeas
Corpus in child custody cases is not pursuant to, but independent
of any statute. The jurisdiction exercised by the Court rests in
such cases on its inherent equitable powers and exerts the force of
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the State, as parens patriae, for the protection of its minor ward,
and the very nature and scope of the inquiry and the result sought
to be accomplished call for the exercise of the jurisdiction of a
court of equity. The primary object of a Habeas Corpus petition, as
applied to minor children, is to determine in whose custody the
best interests of the child will probably be advanced. In a Habeas
Corpus proceeding brought by one parent against the other for
the custody of their child, the court has before it the question of
the rights of the parties as between themselves, and also has
before it, if presented by the pleadings and the evidence, the
question of the interest which the State, as parens patriae, has in
promoting the best interests of the child".
9.3) In the above context, in paragraph 92, the Hon'ble Supreme
Court considered the following general principle governing the award of
custody of the minor, as stated in Halsbury's Laws of England, Fourth
Edition, Vol. 24, Article 511 at page 217 :
"... Where in any proceedings before any court the custody or
upbringing of a minor is in question, then, in deciding that
question, the Court must regard the minor's welfare as the first
and paramount consideration, and may not take into
consideration whether from any other point of view the father's
claim in respect of that custody or upbringing is superior to that
of the mother, or the mother's claim is superior to that of the
father".
10) As regards how to deal with such question, in the case of
V. Ravi Chandran vs. Union of India and others: (2010) 1 SCC 174 , in para
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nos. 29 and 30, the Hon'ble Supreme Court has held that :-
" 29. While dealing with a case of custody of a child removed by
a parent from one country to another in contravention of the
orders of the Court where the parties had set up their matrimonial
home, the Court in the country to which the child has been
removed must first consider the question whether the Court could
conduct an elaborate enquiry on the question of custody or by
dealing with the matter summarily order a parent to return
custody of the child to the country from which the child was
removed and all aspects relating to the child's welfare be
investigated in a Court in his own country. Should the Court take
a view that an elaborate enquiry is necessary, obviously the Court
is bound to consider the welfare and happiness of the child as the
paramount consideration and go into all relevant aspects of
welfare of the child including stability and security, loving and
understanding care and guidance and full development of the
child's character, personality and talents. While doing so, the
order of a foreign Court as to his custody may be given due
weight; the weight and persuasive effect of a foreign judgment
must depend on the circumstances of each case.
30. However, in a case where the Court decides to exercise its
jurisdiction summarily to return the child to his own country,
keeping in view the jurisdiction of the Court in the native country
which has the closest concern and the most intimate contact with
the issues arising in the case, the Court may leave the aspects
relating to the welfare of the child to be investigated by the Court
in his own native country as that could be in the best interests of
the child. The indication given in McKee v. McKee [1951 AC 352 :
(1951) 1 All ER 942 (PC)], that there may be cases in which it is
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proper for a Court in one jurisdiction to make an order directing
that a child be returned to a foreign jurisdiction without
investigating the merits of the dispute relating to the care of the
child on the ground that such an order is in the best interests of
the child has been explained in L (Minors), In re. [(1974) 1 WLR
250 : (1974) 1 All ER 913 (CA)] and the said view has been
approved by this Court in Dhanwanti Joshi : (1998) 1 SCC 112.
Similar view taken by the Court of Appeal in H. (Infants), [(1966)
1 WLR 381 (Ch & CA) : (1966) 1 All ER 886 (CA)] has been
approved by this Court in Elizabeth Dinshaw, [(1987) 1 SCC 42 :
1987 SCC (Cri) 13] ".
11) As observed in the case of Rajeswari (supra), while taking note
of the fact that India is not a signatory to the Hague Convention of 1980, on
the "Civil Aspects of International Child Abduction", the Hon'ble Supreme
Court in the case of Nithya (supra), inter alia, held as under :-
"40. .... As regards the non-Convention countries, the law is that
the Court in the country to which the child has been removed
must consider the question on merits bearing the welfare of the
child as of paramount importance and reckon the order of the
foreign court as only a factor to be taken into consideration,
unless the court thinks it fit to exercise summary jurisdiction in
the interests of the child and its prompt return is for its welfare. In
exercise of summary jurisdiction, the court must be satisfied and
of the opinion that the proceeding instituted before it was in close
proximity and filed promptly after the child was removed from
his/her native state and brought within its territorial jurisdiction,
the child has not gained roots here and further that it will be in
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the child's welfare to return to his native state because of the
difference in language spoken or social customs and contacts to
which he/she has been accustomed or such other tangible
reasons. In such a case the court need not resort to an elaborate
inquiry into the merits of the paramount welfare of the child but
leave that inquiry to the foreign court by directing return of the
child. Be it noted that in exceptional cases the court can still
refuse to issue direction to return the child to the native state and
more particularly in spite of a pre-existing order of the foreign
court in that behalf, if it is satisfied that the child's return may
expose him to a grave risk of harm. This means that the courts in
India, within whose jurisdiction the minor has been brought must
"ordinarily" consider the question on merits, bearing in mind the
welfare of the child as of paramount importance whilst reckoning
the pre-existing order of the foreign court if any as only one of the
factors and not get fixated therewith. In either situation-be it a
summary inquiry or an elaborate inquiry -- the welfare of the
child is of paramount consideration. Thus, while examining the
issue the courts in India are free to decline the relief of return of
the child brought within its jurisdiction, if it is satisfied that the
child is now settled in its new environment or if it would expose
the child to physical or psychological harm or otherwise place the
child in an intolerable position or if the child is quite mature and
objects to its return. We are in respectful agreement with the
aforementioned exposition."
12) In addition to the aforesaid principles of law, every Court is well
aware of the role of a mother in the life of a child of tender age and in
particular, a girl child. In the case of Philips David Dexter vs. State NCT of
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Delhi and Anr., 2013 (135) DRJ 537 (DB), it is observed that, "The bond
between a mother and her child has always been held, especially in India,
standing on a higher pedestal vis-a-vis the bond between a father and his
child. From times immemorial, the Indian ethos gives the highest place in
the life of a child to the mother, followed by the teacher and at third place
comes the father."
12.1) Describing a mother's role in similar situation, in the case of
Vivek Singh vs. Romani Singh: (2017) 3 SCC 231 , the Hon'ble Supreme
Court observed that, "The role of the mother in the development of a child's
personality can never be doubted. A child gets the best protection through
the mother. It is a most natural thing for any child to grow up in the
company of one's mother. The company of the mother is the most natural
thing for a child. Neither the father nor any other person can give the same
kind of love, affection, care and sympathies to a child as that of a mother.
The company of a mother is more valuable to a growing up female child
unless there are compelling and justifiable reasons, a child should not be
deprived of the company of the mother. The company of the mother is
always in the welfare of the minor child ".
13) However, in the case of Rajeswari (supra), in paragraph 84, the
Hon'ble Supreme Court referred to the decision in the case of Rosy Jacob vs.
Jacob A. Chakramakkal (1973) 1 SCC 840, wherein in paragraph 15, it is
held that, "...The children are not mere chattels : nor are they mere play-
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things for their parents. Absolute right of parents over the destinies and the
lives of their children has, in the modern changed social conditions, yielded
to the considerations of their welfare as human beings so that they may
grow up in a normal balanced manner to be useful members of the
society ...."
14) The Government of India has acceded on 11 th December 1992
to the Convention on the Rights of the Child, adopted by the General
Assembly of United Nations, which has prescribed a set of standards to be
adhered to by all State parties in securing the best interest of the child. In
this regard, it is useful to refer the decision in the case of Lahari Sakhamuri
(supra), wherein in paragraphs 43 and 49, the Hon'ble Supreme Court has
held as under :
" 43. The expression "best interest of child" which is always kept
to be of paramount consideration is indeed wide in its
connotation and it cannot remain the love and care of the
primary care giver, i.e. the mother in case of the infant or the
child who is only a few years old. The definition of "best interest
of the child" envisaged in Section 2(9) of the Juvenile Justice
(Care & Protection) Act, 2015, as to mean, "the basis for any
decision taken regarding the child, to ensure fulfillment of his
basic rights and needs, identify, social well-being and physical,
emotional and intellectual development ".
49. The crucial factors which have to be kept in mind by the
courts for gauging the welfare of the children equally for the
parent's can be interalia, delineated, such as (1) maturity and
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judgment; (2) mental stability; (3) ability to provide access to
schools; (4) moral character; (5) ability to provide continuing
involvement in the community; (6) financial sufficiency and last
but not the least the factors involving relationship with the child,
as opposed to characteristics of the parent as an individual."
15) In the light of the aforesaid settled principles of law, we have
considered the facts and circumstances of the case in hand and the oral
submissions advanced at length by learned Advocates for the parties at
dispute. It gave rise to a solitary issue viz; 'Whether Miss 'R' should be
repatriated to the USA or not?'. And considering the material before us
coupled with all the facts and circumstances, a summary inquiry was suffice
to resolve the said controversy.
FINAL ANALYSIS :-
16) It is admitted fact that, Miss 'R' was born in the North Carolina,
USA and she is a citizen thereof. Initially, Miss 'R' resided with both parents
in New Jersey, 07071 until August 2020, after which she enjoyed the love
and care in the company of both the parents under a common roof in North
Carolina, 5924, Cactus Valley Road, 28277, until 5th September 2023.
Following her parents' separation, she has resided separately with each
parent in different locations i.e. 5304, Rock Hill Lane, Charlotte and 5924,
Cactus Valley Road, North Carolina, 28277. Thus, Miss 'R' has spent her
entire life in the USA only.
17) During this stay there, Miss 'R' was studying in the local school.
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Hence, undoubtedly, she was very much comfortable with the surrounding
atmosphere and the local language in the USA. She must have various
friends there. Except a bald statement by the wife, absolutely there is
nothing on record showing that, during Miss 'R's stay in the company of her
parents, right from her birth, she had suffered any inconvenience or some
harm or any injury at the hands of the husband. This fact indicates that,
until Miss 'R' was brought to India, she was treated with love and affection,
care and grown giving full attention by her both the parents. Therefore, the
mother's act of suddenly removing Miss 'R' to India certainly detached her
from her daily routine, emotional bond with her friends and mainly with the
father. Such a disconnect is always traumatic and painful for a child of such
a tender age. Therefore, if Miss 'R' goes back to the USA, she would soon get
blended in the same atmosphere to which she was used to. She need not
learn new things, new language, make new friends and adjust with them,
which she is currently forced to do in India due to unilateral decision of the
wife.
18) In her answer to the Motion of the husband filed before the
Mecklenburg Court, the wife has stated that, the husband is employed by
Zelis as a Data Scientist and earns a base salary of US $ 1,65,000 per year.
Additionally, he gets yearly bonuses, investment income and rental income
from a property at New Jersey. This manifests that, financially, the husband
is secured to provide all the amenities and comfort to Miss 'R', which are
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expected in a country like the USA. In short, the husband is capable to
provide all the support to Miss 'R', which the money can.
19) Undoubtedly, like money, capacity to provide shelter is an
indispensable aspect in such matters. Herein, the house located at 5924,
Cactus Valley Road, in Charlotte, North Carolina, is jointly owned by the
husband and the wife. The house is described as being sufficiently spacious
and designed in a way that allows for separate living arrangements for both
the parents. This could be a significant factor in determining the custody or
guardianship arrangements for Miss 'R' by the Mecklenburg Court.
20) As Miss 'R' is the USA National, it would be advantageous for
her to stay and study in the USA. This is because the USA is considered as a
developed country, offering numerous benefits and better future prospects
for her. Additionally, without the financial support of the husband, who is
described as economically well-placed, it might be challenging for the wife
to provide the same level of amenities for Miss 'R' in India, as she was
enjoying in the USA. This inference is fortified by the wife's pleading before
the USA Court that, she is substantially in need of maintenance and support
from the husband. Thus, the argument weighs the benefits of staying in the
USA, where Miss 'R' is a citizen, against the potential challenges she might
face in India, where she lacks citizenship and may not have access to the
same level of resources and opportunities.
21) From the rival pleadings, it is apparent that, immediately after
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the marriage, the husband and the wife shifted to USA. They beget the child
there. Meanwhile, they bought a house property in North Carolina. This
conduct clearly indicates that, since fixing of their marriage, the parties had
a mutual perceptive and intent to work and for good settle in the USA.
22) The wife contended that, on 05 th September 2023, the husband
left the matrimonial house by taking out Miss 'R' from the school without
her consent and on the same day, he filed the Petition before the
Mecklenburg Court, seeking separate custody of Miss 'R'. Thus, the husband
tried to deprive the wife the custody of Miss 'R'. However, this cannot justify
the wife's act of bringing Miss 'R' to India suddenly, because she had already
filed her Answer-cum-counter claims for substantial reliefs i.e. divorce,
permanent custody of Miss 'R' and their maintenance etc., in the same
Court. Therefore, she could have easily moved to that Court to thwart the
ill-attempt of the husband of denying her the custody and company of Miss
'R'. This was very much possible as the husband had no intention to move
beyond the limits of the ordinary place of his residence there and the said
Court's local jurisdiction, the wife has been earning there and they both
have separate support of residential facility to which Miss 'R' was very much
familiar. That apart, as stated in the Affidavit-in-Reply, the husband had
offered for equal custody of Miss 'R'. That, on separation between the
parents, arrangement of Miss 'R's custody was pursuant to their mutual
understanding and it was until the Court decides differently. Their lawyers
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assisted in this arrangement. These fact indicate that, the husband never
wished nor wanted to deprive Miss 'R's custody rights to the wife.
23) Additionally, the wife has taken the ground that, the husband
withheld her immigration documents and Canadian PR in exchange of her
consent to Indian divorce in the USA as her visa was dependent on the
husband's visa - H4 (spouse visa). Thus, the husband was trying to make
the wife's presence unlawful in the USA by withholding her immigration
documents and attempting to deport her without Miss 'R'. However, the
basis of this claim is not explained with sufficient clarity in the Affidavit-in-
Reply nor it is discernible from the record as to exactly when the husband
tried to withhold the said documents. If indeed that situation was existing,
the wife could have requested the Mecklenburg Court to restrain the
husband from doing that to her. Additionally, to grant her Miss 'R's visiting
and contact rights plus her custody on sharing basis. Since Miss 'R' was
citizen of the USA, studying school there, being of tender age and the wife
was economically stable there with a shelter facility, the Court concerned
would not have declined those reliefs in the best interest of Miss 'R'. This we
safely infer as the same Court granted an urgent Motion by the husband for
an ex-parte emergency custody on account of Miss 'R's sudden removal to
India.
23.1) It is not the case that, there is no law in the USA to meet the
situation where a husband acting to make the presence of his wife unlawful
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by detaining her immigration documents etc., as claimed herein by the wife.
Instead, the converse is more probable, as post marriage also people from
all over the world go to the USA for work. In other words, we cannot
imagine a country like the USA, without a law, providing an apt remedy
against the act of a husband of withholding his wife's immigrant documents
with intent to make the wife's stay there unlawful. Be that as it may,
considering the fact that still the wife is in the same job from the USA, it is
highly probable that, after her return to the USA in any situation, she will
get a necessary visa to stay there so long as the best interest of Miss 'R' is not
served in conformity with the local law, as Miss 'R' is the USA citizen.
Therefore, this ground is absolutely baseless.
24) The wife contended that, the separation between her and the
husband caused Miss 'R' to face a tough time. It resulted in indiscipline in
the school on her part, which saw her punished. Therefore, the wife met
Miss 'R's School Counsellor and informed about her concern. However, the
Counsellor showed ignorance claiming that, the class teacher never
informed her the said concern. Yet, the husband obtained a letter from the
school to show that, Miss 'R' never needed such counselling. The behaviour
of the husband with Miss 'R' and his habits were so indifferent that, Miss 'R'
suffered anxiety, stress etc.
24.1) In this context, learned Advocate for the wife pointed that,
being concerned for Miss 'R's health, the wife took her to a Child Therapist
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Nisrin Poonawala for psychological assessment and therapy. It immensely
helped improving Miss 'R's mental well-being. However, we restrict
ourselves from relying on the assessment/therapy report given by said
Poonawala, because she has done just Master of Arts (Psychology), as
informed by learned Advocate for the wife. Secondly, the health issues with
which Miss 'R' encountered with as demonstrated by the wife, were of
greater magnitude, as on multiple occasions Miss 'R' stated that, 'I hate
myself; I wish I was dead' . In our considered view, such a state of mind is
medically better handled and treated by specially qualified child
psychiatrists, who are easily available in Pune. Nevertheless, instead of first
taking Miss 'R' directly to such a scientific expert after returning to India on
07th December 2023, the wife caught up with her Advocate and engaged in
filing F.I.R. of cruelty and domestic violence case. Then she allegedly took
Miss 'R' to the said Psychologist in the 1 st week of January 2024. This
conduct of the wife distinctly indicates that, she avoided to give priority to
Miss 'R's health and instead, thought it appropriate to first file cases against
the husband. This amounts to serve one's own interest. As such, the plea as
to Miss 'R's mental well-being and the related Psychologist's report was
nothing but an attempt to mislead the Court.
25) No doubt, in the F.I.R.No.567/2023 the wife alleged that,
immediately after the marriage, the husband and his relatives treated her
with cruelty. However, even though the wife was in India during the Ganesh
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Festival of 2018, she did not try to file the report of cruelty then and there.
The F.I.R. does not mention that, after December 2018, the husband caused
any specific cruelty. Therefore, veracity of the F.I.R. is subject to trial.
25.1) Evidently, immediately after filing of the said F.I.R., the wife
filed the domestic violence case and the petition seeking for Miss 'R's
custody, in the Court at Pune. Considering this conduct coupled with other
facts and circumstances of the case, it is clear that, deliberately the wife
resorted to this method of litigation just to involve the husband in the
multifarious and complex legal battle in India. So that, reasonable time is
consumed in taking that litigation to its logical end and thus, it results in
Miss 'R' develop her roots in India to some extent and consequently make
her immediate repatriation to the USA, practically impossible. This all
indicate that, the unilateral decision that the wife took to return to India
alongwith Miss 'R' was with intent to serve her own interest i.e. to keep Miss
'R's exclusive custody with her, not in the best interest of Miss 'R', which was
of utmost importance. And we are sure, the wife has been led into this
complicated situation only because of an improper legal advise given to her
in/from India, which is really unfortunate, as it acted against Miss 'R',
exactly from the time she left the USA.
25.2) As held in the case of Philip David Dexter (supra), "When the
abducting parent is the mother, it is common for her to claim that the
matrimonial bond has broken down, and more often than not the allegation
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would be ill-treatment and domestic abuse by the male spouse. There are
bound to be allegations that the conduct of the male spouse was of a serious
kind with grave likelihood of risk to the mental or the physical health of the
child born during the wedlock. Invariably, as an excuse to abduct the child
from the foreign shores, she is bound to say that she resorted to a secret
operation i.e. resorted to a stratagem of contrivance; pulling wool over the
eyes of her spouse and even taking the Courts of that country for a ride; too
afraid to do otherwise, she was left with no option but to flee to the country
where her kith and kin by birth were available to provide her with comfort
and support." These observations completely applies to the case in hand.
26) Admittedly, since 5th September 2023, the husband and the wife
have been residing separately and could not come together thereafter.
Therefore, the husband filed a Motion before the Mecklenburg Court,
seeking for certain reliefs, and in para Nos.10, 11 and 12 thereof, he
asserted that, (i) said Court has subject matter jurisdiction over the said
claims pursuant to the North Carolina Uniform Child Custody Jurisdiction
and Enforcement Act (for short 'UCCJEA'), (ii) said Court has personal
jurisdiction over Mother, Father and the parties' minor child, pursuant to the
North Carolina UCCJEA and (iii) in the best interest of all parties and the
minor child said Court make an award of custody of the parties' minor child.
Pursuant to the North Carolina General Statutes, there now exists facts
which justify said Court's assuming jurisdiction relative to the exercise of
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custody of the parties' minor child pursuant to the North Carolina General
Statutes. The reliefs claimed by the husband were as under :-
i) That, the father's complaint be received as a Motion for all the
relief sought therein.
ii) to award primary legal custody of the minor child to the father.
iii) to award primary physical custody of the minor child to the
father.
iv) to calculate the parties' child support obligations to the minor
child, pursuant to the North Carolina Child Support Guidelines,
including temporary and permanent child support.
v) to award equitable distribution of the parties' marital and
divisible property, awarding mother with an unequal distribution
in mother's favour.
vi) to order the father to defray the expenses of this action,
including the payment of a reasonable attorney's fee to mother,
related to mother's claims for child custody and child support.
vii) that father be granted such other and further reliefs as the
Court may deem just and proper.
26.1) In her Answer to the husband's Motion, particularly in
paragraph Nos.10, 11 and 12 thereof, the wife admitted the claim about the
said Court's jurisdiction, and it is rightly so, as after marriage, the wife was
settled with the husband in the USA. They got blessed with Miss 'R' there
and since then, Miss 'R' was living there uninterruptedly. Secondly, since
before, the couple has been employed there and earning sufficiently. As
noted in the Order dated 14th December 2023, passed by the Mecklenburg
Court, the wife has filed a 'Temporary Parenting Arrangement' Motion
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before the said Court. Therefore, it was highly probable that, said Court
would have passed an Order giving visiting and custody rights of Miss 'R' to
her both parents.
27) The Orders dated 14th December 2023 and 19th January 2024,
passed by the Mecklenburg Court indicate that, the husband and the wife
appeared before the said Court on or about 6 th December 2023 for hearing
on the wife's Motion for 'Temporary Parenting Arrangement'. At the 6 th
December 2023 'Temporary Parenting Arrangement' hearing, during father's
cross-examination of mother, the latter denied all allegations that she had
made any threats to take Miss 'R' out of the country and deprive the
husband of the minor child permanently. However, the mother on or about
7th December 2023 took Miss 'R' with her to India. The said Orders further
indicate that, immediately thereafter, the husband moved a Motion seeking
for Miss 'R's 'Ex Parte Emergency Custody'. The Mecklenburg Court granted
that Motion by its Order dated 14th December 2023, and directed that,
immediately after entry of the said Order, the wife shall return Miss 'R' to
the case of the husband in Charlotte, North Carolina. The said Court's Order
dated 19th January 2024 noted that, despite service of the Order dated 14 th
December 2023, the wife did not record her appearance before that Court
and nor she complied with that Order. Therefore, the said Court granted to
the husband the sole legal and physical care, custody and control of Miss 'R'.
This all show that, the wife has scant respect for the said Court and its
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Orders even though at the very first opportunity she filed her Answer-cum-
counter claim and Motion for 'Temporary Parenting Arrangement' before the
same Court and thus, submitted herself to its jurisdiction. These
circumstances fortify our conclusion above that the wife just wanted to keep
Miss 'R' in her custody and keep the husband away from her. This is unfair
from the view point of the child and the law as well.
27.1) In this context, it has to be kept in mind that, the principles of
status quo ante require a Court to restore parties to the same position in
which they were before one party, acting illegally and unlawfully, changed
the status quo. He who violates the law and does an act to change the status
quo should not be permitted to gain an unfair advantage. These principles
of civil law, when transposed to the family dispute of parental abduction
would mean that the object of the law is (i) To deter either parent from
taking the law into his/her own hand; (ii) To restore the child as soon as
possible to the home country; (iii) To restore the Status quo ante; (iv)
Abducting parent should not gain any unfair advantage.
28) During the hearing of this Petition, on instructions from and in
presence of the Petitioner-husband, his learned counsel made a statement
that, the husband is ready and willing to give the entire joint house property
of the parties in the USA, including his share, for Miss 'R' and the wife's stay
there. Besides that, the husband will happily provide all the financial
support which Miss 'R' and his wife need to reside there. That, whatever
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documents the wife would require for her stay in the USA, the husband
would unconditionally provide it to her. Additionally, he would also give his
'no objection' and help her whenever and wherever she would be required
to get such documents. From this statement of the husband, we are sure
that, there is no hurdle before the wife in quickly returning to the USA
alongwith Miss 'R' and there would be no harm by the husband to Miss 'R'
and obstacle to the wife's stay there. Moreover, such a return to the Country
of Origin is very essential for the child. However, according to us, the
husband should never obstruct or come in the way of the wife whenever she
wants to visit India, in case she along with Miss 'R' resumes at the USA.
29) Even though the wife has been residing in India, she did not
quit her present job in the USA, meaning thereby, still she has been in the
same job as submitted by her learned Advocate. Currently, she is earning
US$ 84,000 per year; that is surely decent, compared to one's earning in
India carrying similar educational qualifications. It is not the case that, the
wife has been planning to resign from her current job and would try to get a
new job in India. Considering these circumstances coupled with the fact
that, the parties own a conveniently separable house in the USA, it is safe to
presume that, once the wife got a pin to piano through the litigation she has
opened in India against the husband, soon she would resume her life in the
USA alongwith Miss 'R'. Thus, ultimately the wife also wants to settle in the
USA.
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30) Upshot of the aforesaid discussion is that, story weaved and the
scheme designed by wife to return to India by abducting Miss 'R', unmindful
of the ill-consequences of the said act, is not acceptable it being devoid of
merits. The said action of the wife was intended to serve her own interest,
not the child's. Hence, Miss 'R's custody with wife, cannot be said to be
strictly legal. On careful examination of the facts and circumstances of the
case, we are of the opinion that, there was no inconvenience or any harm to
Miss 'R' till she was in the care and custody of the husband before she was
brought to India. Miss 'R' was born in the USA and her living there was
unbroken, excepting the last 4/5 months since she was brought to India.
Therefore, and considering the settled principles of law, we deem it
appropriate that, Miss 'R' is repatriated to her home State in the USA. This
will help her overall development and thus, serve her best interest, which is
of a principle consideration. The conduct of the husband in filing this
Petition promptly and remaining present on the dates of hearing, travelling
from the USA whenever possible, convinced us to hold that, he is a
responsible father and having sincere interest in the child. Besides, he is
carrying sufficient means and resources to maintain, up-bring and provide
quality life to Miss 'R' in the USA. This would bring better prospects to Miss
'R' and aid her to step into the society as a respectable person. As such we
see no harm to Miss 'R' from the hands of the husband, if she goes back to
the USA. The Order dated 19th January, 2024 passed by the Mecklenburg
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Court shows that, the father is a fit and proper person to be awarded sole
legal and physical custody, pending further Orders of the said Court. The
husband's approach to voluntarily help the wife to resume her life in the
USA and stay there comfortably with the help of the documents that she
requires shows that, he has no prejudice towards the wife due to the
litigation she initiated in India. We hope this conduct is maintained by him
all the time, as it will help the couple to resolve their all disputes, amicably.
31) Thus, we are inclined to allow the Petition. However, as held in
the case of Yashita Sahu (supra), we cannot direct the wife to return to the
USA. The wife is an adult and no Court can force her to stay at a place
where she does not wish/want to stay. This aspect is independent in so far
as Miss 'R's repatriation is concerned. Therefore, no direction is possible in
the writ jurisdiction, to cause the wife to go and live with the strained
husband. Nevertheless, considering Miss 'R's present condition, the
directions which we must pass hereinafter must be so convenient that, in
either case i.e. whether the wife goes to the USA or not, said direction
should serve the best interest of Miss 'R' and her both parents.
32) At this juncture we feel that, it will be in the interest of Miss 'R'
if the Respondent No.3-wife herself accompanies Miss 'R' to the USA. The
wife may like to live in the USA or not, as this is her personal choice.
However, if she goes back to the USA alongwith Miss 'R', then she must
comply with the Orders of Mecklenburg Court. Obviously, she can apply for
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modification/vacation of the said Orders, if so advised.
33) In view thereof, the Writ Petition is allowed with following
directions :-
33.1) The wife shall handover custody of Miss 'R' to the
husband with passport of Miss 'R' in presence of the learned
Advocate for the husband on 10th May, 2024 at 11:30 a.m. In the
same manner, the wife shall handover necessary school
documents of Miss 'R' to the husband till 04:00 p.m. of 14th May,
2024. Thereafter, the husband shall make necessary
arrangements for taking Miss 'R' to the USA accompanied by
atleast his one close relative.
33.2) In case the wife goes back to the USA along with
Miss 'R', then, she must comply with the Orders of Mecklenburg
Court. Obviously, she can apply for modification/vacation of the
Order, if so advised.
33.3) In case the wife goes back to USA, it shall be the
responsibility of the husband to pay reasonable expenses for her
entire travel and stay. The wife must within one week from the
date of uploading of this Judgment and Order on the official
website of the High Court, Bombay, intimate the Advocate for the
husband whether she is willing to go back to the USA, or not. In
case, she expressed her willingness to do so, the husband shall
purchase tickets for travel of the wife, and Miss 'R' to the USA,
which journey must be performed on or before 28th May, 2024.
We make it clear that, it will be the wife's responsibility to obtain
the requisite travel documents required by her to travel to the
USA by the said date.
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33.4) In case the wife is willing to go back to the USA
along with Miss 'R' but is not willing to live with the husband, we
direct that, the husband shall make alternative arrangements for
his own stay and handover possession of the joint house property
of the parties to the wife namely 5924, Cactus Valley Road,
Charlotte, North Carolina 28277 in conformity with his
aforenoted statement made through his Advocate.
33.5) The husband is directed to take care of all the
expenses of day-to-day running of the house, educational
expenses of Miss 'R', medical insurance for both-wife and Miss 'R',
electricity, gas and all other incidental expenses till the time the
jurisdictional Court in the USA makes a provision in this regard.
33.6) The husband shall not initiate any coercive or penal
action against the wife in the USA and if such action has already
been initiated by him or any proceedings in that regard are
pending, then the same shall be withdrawn and not pursued any
further by the husband. This will be precondition to facilitate the
wife's appearance before the Court/s concerned in the USA to
effectively represent and defend herself in all matters relating to
the matrimonial dispute (including custody and guardianship
issues of Miss 'R') between the husband and the wife.
33.7) We, however, clarify that this arrangement will only
continue up to 30th June, 2024 before which date the parties must
get the proper directions from the jurisdictional Court/s in the
USA. Once the jurisdictional Court in the USA passes the order,
then this portion of the Order shall cease to operate.
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34) In case the wife does not inform the Advocate for the
husband within one week from the date of uploading of this
Judgment and Order that, she is willing to go back to the USA,
then it shall be presumed that, she has no intention to go to the
USA along with Miss 'R'. In that event, we issue the following
directions :-
34.1) In case, Miss 'R' goes to the USA with the husband,
the husband shall ensure that, Miss 'R' talks to her mother
through video calling facilities such as WhatsApp, Skype, etc.,
everyday at 08:30 p.m. Eastern Standard Time on weekdays
(Monday-Thursday) for atleast 10 minutes each day and on
weekends (Friday-Sunday), he shall ensure that, Miss 'R' talks to
her mother at the same time or any other time mutually settled
between the parties through video calling for atleast 15 minutes.
34.2) We further direct that, if the wife visits the USA
hereafter and is staying in the same town where the husband
resides, she will be permitted custody of Miss 'R' on all weekends
i.e., from Friday 06:00 p.m. to Sunday 06:00 p.m.
34.3) Even if the wife does not visit the USA, the husband
shall ensure that, Miss 'R' visits India atleast twice a year, once
during the summer vacations and once during the winter break,
as per Miss R's school schedule. It will be his responsibility to
ensure that, Miss 'R' comes to India accompanied either by him
or one of his blood relative. During this period, Miss 'R' shall
remain exclusively with the wife. However, in case the husband
is also visiting with Miss 'R', then during the period when Miss 'R'
is in India, the husband will have the custody of Miss 'R' for two
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days per week, preferably on weekends or on other suitable days
as settled by the parties.
34.4) In any event, if the wife returns to the USA and stays
there till the time she desires and dependent on the spousal visa,
as legally available through the husband, the husband shall
provide all the documentary and other requisite legal support to
the wife as expected of him, to obtain such valid visa by the wife,
in accordance with the USA and Indian law, as the case may be.
This direction shall mutatis-mutandis apply to any other visa
which the wife would need in the aforesaid situation and
available with the documentary or any other lawful support
required from the husband. The husband shall give an
undertaking to that effect including paragraph no.28 above.
35) The Writ Petition is disposed off in aforesaid terms. Rule is
made absolute.
(SHYAM C. CHANDAK, J.) (A.S. GADKARI, J.)
36) At this stage, learned Advocate for the Respondent No.3-wife
prayed that, he intends to challenge the present Judgment and Order before
the Hon'ble Supreme Court and therefore it's effect and implementation be
stayed for a period of two weeks from today.
37) As noted in the Judgment, we have taken into consideration
the best interest of child 'R' predominantly and, we have also given many of
the reliefs to the wife by way of directions in paragraph nos.33 and 34
P.H. Jayani 20 WP341.2024 Final.doc
above. In view thereof, it will not be out of place to mention that,
Respondent No.3 in utter disregard for the best interest of child 'R', has
brought her to India. Hence, we are not inclined to grant stay to the
impugned Judgment and Order.
(SHYAM C. CHANDAK, J.) (A.S. GADKARI, J.)
